The Public Domain vs. the Museum: The Limits of Copyright and Reproductions of Two-dimensional Works of Art

Author:

Grischka Petri

University of Bonn, DE

About Grischka

Abstract

The problem of museums and public institutions handling reproductions of works in their collections is not only a legal question but also one of museum ethics. Public museums are committed to spreading knowledge and to making their collections accessible. When it comes to images of their holdings, however, they often follow a restrictive policy. Even for works in the public domain they claim copyright for their reproductive photographs. This paper offers an analysis of the different interests at stake, a short survey of important cases, and practical recommendations.

How to Cite:
Petri, G., (2014). The Public Domain vs. the Museum: The Limits of Copyright and Reproductions of Two-dimensional Works of Art. Journal of Conservation and Museum Studies. 12(1), p.Art. 8. DOI: http://doi.org/10.5334/jcms.1021217

Introduction

Museum ethics have now entered the digital age, as have images and the copyrights
pertaining thereto. In general terms, the law is regarded as a kind of minimum
ethical standard. As a result, one could be inclined to believe that copyright can
provide guidance as to how to handle reproduction rights in an ethically
satisfactory manner. However, two cases – one very recent but already famous,
and another, slightly less recent but arguably even more famous and highly disputed
– show that copyright and the logic of rights and reproductions have their
limitations. It is suggested that current museum practice in view of copyright is to
some extent unethical. To assess the ethics of using reproductions of works of art
in the public domain, the public domain first has to be reinstalled.

This paper will begin by examining two case studies. The first case involved the
National Portrait Gallery in London and the Wikimedia Foundation. The second case,
Bridgeman v. Corel, was decided by a New York
court in 1999. Next, the underlying copyright issues involved in the two cases will
be assessed. The paper will conclude with some ethical considerations.

1. Case studies

1.1 National Portrait Gallery (UK) v. Wikimedia Commons

The National Portrait Gallery in London (NPG) was founded in 1856. It is not an
art museum as such, but focuses on collecting portraits of historically
important people. Since 1896, it has been based at St Martin’s Place in
London, not far from the National Gallery. The gallery’s collections
comprise more than 4,000 paintings, and some 6,800 works on paper, such as
photographs and prints. Digitisation did not bypass the NPG, and it started
making digital images of works from the collection available early in the
twenty-first century. The user can view images of specific works on the
gallery’s website. Before the dispute of 2009, it was even possible to
zoom in on details, by a high-resolution image being divided into tiles. Zooming
in displayed only the relevant tiles of the image, and never the complete image
in its high-resolution glory. The main reason for the use of such technology is
to save bandwidth. Admittedly, the National Portrait Gallery also had in mind a
rudimentary form of protection against the images being copied in their maximum
resolution.

In 2009, Derrick Coetzee, a graduate student at the University of California,
Berkeley, wrote a script that downloaded the image tiles of more than 3,000
images from the National Portrait Gallery’s website and re-assembled them
into complete, high-resolution images, which he then uploaded to the Wikimedia
Commons repository on the Internet. In other words, the images that the NPG
offered in tiles were now available in their entirety. Pursuant to UK law, these
were all images in the public domain: the original copyright holders had been
dead for more than 70 years (cf. Copyright, Designs and Patents Act 1988,
section 12, subsection 2). In a demand letter to Coetzee, however, the NPG
claimed that its new photographic reproductions of the works in its collections
were copyrighted works in their own right, and that the uploading of the images
infringed both the NPG’s database rights and its copyrights (see the
article ‘National Portrait Gallery and
Wikimedia Foundation copyright dispute’ on Wikipedia, and a
discussion of the case in Stokes 2012:
156–164).

The matter never reached the courts, and the dispute was never properly settled.
Instead, both parties eventually entered a dialogue in which they agreed to
disagree. At a conference on galleries, libraries, museums and Wikipedia in the
autumn of 2010, the head of the NPG’s rights and reproductions department,
Tom Morgan, presented a paper analysing the unsatisfactory situation and the
shared goals of both organisations, arguing for a new kind of relationship
beyond the law (Morgan 2010). While the
National Portrait Gallery allegedly wanted to avoid the Streisand effect,
it’s reluctance to sue Coetzee might also have been the result of a case
decided - twice - ten years earlier, Bridgeman v.
Corel.

1.2 Bridgeman v. Corel

In 1998 and 1999, a District Court in the US state of New York decided the case
of Bridgeman Art Library, LTD. v. Corel Corp.,
a decision that has divided opinion among experts ever since. Founded in 1972 by
Harriet Bridgeman, the Bridgeman Art Library is an important archive for
reproductions of works of art. Corel is a Canadian software company. In the UK,
the USA and Canada, it sold a CD-ROM containing digital images of paintings by
European masters, all of which were in the public domain. Bridgeman claimed that
it held the copyright to these images, arguing that its own digital images were
the only possible source of the images distributed by Corel, and that these
copies were infringements of Bridgeman’s copyright. Corel denied that
there was any copyright pertaining to the Bridgeman photographs.

While the details of the case and its rulings are intriguing in themselves, only
parts are of interest here. In a first ruling on 13 November 1998 [The
Bridgeman Art Library, Ltd. v. Corel Corp., 25 F.
Supp. 2d 421 (SDNY 1998)], Judge Kaplan granted the defendant’s motion for
a summary dismissal of the suit. He argued that the issue of the
copyrightability of photographs was governed by the law of the United Kingdom
– where the photographs had originally been published – while the
question of whether an infringement had occurred in the United States was a
matter of United States law. Judge Kaplan applied the originality test set forth
in section 1, subsection 1 (a) CDPA (UK Copyright, Designs and Patents Act
1988), which protects ‘original literary, dramatic, musical or artistic
works’ to the Bridgeman photographs. For a definition of originality,
Kaplan cited Interlego AG v Tyco Industries Inc &
Ors (Hong Kong) [1988] UKPC 3 (05 May 1988), RPC, 343, which had
ruled that, in order to be original, works ‘need not be original or novel
in form, but it must originate with the author and not be copied from another
work’. (This was in itself a quote from another case, a summary by J
Megarry in British Northrop Limited v. Texteam
Blackburn Limited [1974] RPC 57, at 68.) Judge Kaplan concluded
that the Bridgeman photographs ‘lacked sufficient originality to be
copyrightable under United Kingdom law’. Indeed, they were meant to be
faithful reproductions of the works of art that they represented. One could
argue that such images are a priori not originals, as the Privy
Council had pointed out in the Interlego case:

‘Take the simplest case of artistic copyright, a painting or a photograph.
It takes great skill, judgment and labour to produce a good copy by painting or
to produce an enlarged photograph from a positive print, but no one would
reasonably contend that the copy painting or enlargement was an
“original” artistic work in which the copier is entitled to claim
copyright. Skill, labour or judgment merely in the process of copying cannot
confer originality. […] [C]opying, per se, however much skill or labour
may be devoted to the process, cannot make an original work.’ (loc. cit,
at 371)

The case was re-argued and reconsidered after the court was – in the words
of Judge Kaplan – ‘bombarded with additional submissions’ by
Bridgeman. In a second decision [36 F. Supp. 2d 191 (S.D.N.Y. 1999)], the court
exclusively applied American law, but ultimately affirmed the earlier decision,
dismissing the case for the same reasons.

The two cases point at identical questions of copyright. Are photographic
reproductions of works of art in the public domain protected by copyright? This
is what Bridgeman and the National Portrait Gallery claim. But are these
reproductions really ‘original’ in the sense of copyright law? What
is the legal situation in countries other than the UK? The following section
will analyse the legal framework concerned.

2. The copyright status of photographic reproductions of works of art in the
public domain

The question is: are photographic reproductions of works of art in the public domain
copyrightable? My analysis will centre around UK and EU law, with a few digressions
into US law, taking up the facts of the Bridgeman and National Portrait Gallery
cases.

2.1 The public domain

This paper will not touch on the question of works of art that are still under
copyright. Generally, copyright protection ceases after a certain period, which
is defined by the applicable law. Historically, the duration of copyright has
been extended from 14 years in the first copyright act, the ‘Act of
Anne’ (1709, 8 Anne c. 19), to fifty or seventy years after the
author’s death in most countries. On expiry of this term, works are no
longer copyright-protected but are in the public domain. Consequently, they are
free to use, and anybody can do that which, before, was the author’s
exclusive right: this includes the right to make copies and to reproduce the
work, and to sell these reproductions. The Bridgeman Art Library offered
reproductions of such works. If a work is in the public domain, these
reproductions cannot be exclusive.

Indeed, the Bridgeman Art Library did not contest the public domain as such, but
maintained that Corel had used Bridgeman’s images. However, it can be
almost impossible to decide from which source a reproduction has been made, in
particular if there are several images in circulation. The Bridgeman Art Library
argued that some of the works of art were in private collections, to which
Bridgeman had gained exclusive access, but Judge Kaplan dismissed the argument.
It was impossible to establish similarities that could prove that Corel had
copied Bridgeman’s images and not anybody else’s: ‘Because, by
definition, public domain works are not subjects of copyright, this cannot serve
as the requisite similarity for copyright infringement.’ [The
Bridgeman Art Library, Ltd. v. Corel Corp., 25 F.
Supp. 2d 421 (S.D.N.Y. 1998)]. In other words, ‘how would one discern
whose copies are whose?’ (Bielstein 2006:
45). Even if it had been clear that Corel had used the Bridgeman
images, there would not have been an infringement of the copyright in the
original work, since this had expired, but only of the copyright in the
reproduction.

The National Portrait Gallery case points to the heart of this issue: here it was
uncontested that Derrick Coetzee had used the images on the NPG’s website.
Furthermore, the works of art in question were part of the museum’s
collections. Modern copyright has established that it is not the owner of a work
of art who is the copyright holder, but the creator: possession does not
automatically convey copyright. Historically, however, museums have been able to
control reproductions of public-domain images from their collections (Butler 1998: 72). In the early nineteenth
century, when copyright was still in its infancy, the president of a French
commission debating the role and foundations of copyright observed it to be a
rule that the Royal Museums acquired the copyright together with any object
entering their collections (Commission de la
propriété littéraire 1826: 278). In this constellation
the museum acts as the defender of the author’s rights. Although this no
longer reflects the copyright laws of the 21st century, part of the argument
seems to inform museums’ actions to the present day: even if they do not
own the copyright to the works in their collection, they might at least own the
copyright of the reproductions of these works – at least, that is their
stance (cf. Crews 2012: 806).

2.2 The museums’ view: copyright in reproductions and factual
monopolies

A Guide to Copyright for Museums and Galleries, published in
2000 in association with the UK Museums Copyright Group, and supported and
endorsed by the Museums and Galleries Commission and the Scottish Museums
Council, states that ‘where there is sufficient skill and labour,
copyright protection can be given to duplicates’, pointing out technical
skills such as the prevention of glare, careful light meter readings and
faithful colours (Wienand, Booy and Fry 2000:
16). While it is admitted that this ‘is a highly contentious
area’ (ibid.), the common practice of museums and
galleries evidently remains unchanged (cf. Crews
2012: 806; Reese 2009: 1040).
In Britain, the Museums Copyright Group concluded that the Bridgeman cases had
‘not influenced the ways museums negotiate or license rights’ (Museums Copyright Group 2004). As a rule,
museums claim on their websites that they own copyright to the images of the
works in their collection, as The Bridgeman Art Library still does: ‘The
Bridgeman Art Library is the copyright holder, or authorised representative of
the copyright holder, for all photographic transparencies in the Bridgeman Art
Library.’ For example, the website of the Museum of Fine Arts in Boston
claims: ‘The Images are not simple reproductions of the works depicted and
are protected by copyright.’ (MFA Boston
2013; see also Crews 2012:
822; Mazzone 2011: 17). Such
statements, it has been remarked, are in complete opposition to the
court’s decision in the Bridgeman cases (Cameron 2006: 48; Crews 2012:
808–09; Dobson 2009:
335; Matz 2000: 4; Mazzone 2011: 15; Wojcik 2008: 259, 271).

2.3 Originality, photography, Graves’ Case and recent UK
decisions

As Bielstein asks, ‘What does it mean […] to claim that one can
copyright a copy?’ (2006: 41)
Although the standard required for a work to qualify as original is indeed very
low (Garnett 2001: 229–30; Stokes 2012:
50), a frequently cited case, University of London Press
Ltd v. University Tutorial Press Ltd ([1916] 2 Ch.
601), also sets a minimum standard: ‘that the work must not be copied from
another work – that it should originate from the author.’ (ibid.,
per Peterson J at 609). This test of originality is also part of other
countries’ copyright legislation. Originality has been called the
‘bedrock principle of copyright’ by the US Supreme Court
(Feist Publications, Inc. v. Rural Tel. Serv.
Co, 499 U.S. 340, 347 [1991]). Indeed, despite their diverging
traditions and concepts of copyright, British and US standards may not be so
different (cf. Cameron 2006: 55–6),
and the same is true of continental copyright laws in the light of European
legislation. Specifically regulating photographs, Art. 6 of the European Council
Directive 93/98/EEC provides that ‘[p]hotographs which are original in the
sense that they are the author’s own intellectual creation shall be
protected […]. No other criteria shall be applied to determine their
eligibility for protection.’

Indeed recent decisions by British courts broach the issue of harmonisation
between EU and UK laws. Temple Island v. New English
Teas and Nicholas John Houghton, a case in the England and Wales
Patents County Court heard in November 2011, included an insightful appreciation
of the correlations between European and UK regarding the standard of
photographic originality, remarking that there was ‘no difference in
substance’ between the law as applied by the Austrian Supreme Court, the
Court of Justice of the European Union, and UK law, recapitulating that a
photograph is original ‘in terms of copyright law if the task of taking
the photograph leaves ample room for an individual arrangement’ ([2012]
EWPCC 1, at para. 20). This takes up the definition of originality from the
Infopaq decision of the European Court of Justice, stating that a work is
original when it is an ‘author’s own intellectual creation’
(Infopaq International A/S v. Danske Dagblades
Forening, Case C-5/08, [19 July 2009] ECR I-6569, at para. 37), in
turn reiterating Art. 6 of the European Council Directive 93/98/EEC. The
definition has since been confirmed in Painer v.
Standard Verlags-GmbH and others (Case C-145/10, [1
December 2011] ECR I-12594, at para. 87).

In view of these recent decisions, the resurrection of Graves’
Case [(1869) LR 4 QB 715] by authors arguing in favour of copyright
protection for reproductive photographs (Garnett
2000: 231) becomes even more doubtful. In this case, Henry Graves, a
well-known publisher of art reproductions in Victorian Britain, had registered
photographs of engravings to obtain protection under the Fine Arts Copyright Act
of 1862 (25 & 26 Vict. c.68). J. B. Walker, who had sold pirated copies of
these reproductions, was charged with the infringement of Graves’
copyright and applied to the court to delete the entries in the register,
arguing that there was no copyright in the photographs of the engravings.
Blackburn rejected the argument, observing that ‘all photographs are
copies of some object, such as a painting or a statue. And it seems to me that a
photograph taken from a picture is an original photograph, in so far that to
copy it is an infringement of this statute.’ [(1869) LR 4 QB 715, at 723].
The persuasive power of this reasoning is limited; apparently Blackburn merely
asserted the conclusion, which he supported only with his personal view:
‘it seems to me that […]’. Judge Kaplan discussed the
authority of Graves’ Case in the second
Bridgeman decision, concluding that it did not reflect the
subsequent development of the concept of originality [36 F. Supp. 2d 191
(S.D.N.Y. 1999), at 198].

The limits of the authority of Graves’ Case become even
clearer if one takes into account the fact that Henry Graves was also the
copyright owner of the reproduced paintings, as well as the corresponding
engravings (cf. Lupton 1988: 257). To
deny Graves copyright protection for his photographs would have effectively
undermined his copyright in the paintings and the engravings, which he also
owned. In other words, the works in question were not, as in the Bridgeman and
National Portrait Gallery cases, in the public domain; what was at stake was the
integrity of Graves’ bundle of exclusive rights. Since section 4 of the
Fine Arts Copyright Act of 1862 provided protection only for works listed in the
‘Register of Proprietors of Copyright in Paintings, Drawings and
Photographs’, it was a prudent move on Graves’ part to register all
media in order to obtain complete protection for all types of use. For these
reasons, Graves’ Case is not good authority on the
originality of photographs, but rather on the enforcement of an effective
copyright protection covering all types of use (cf. the cautious reflection by
Stokes that the specific facts in Graves’ Case and the
case’s antiquity could make it a less than persuasive authority, and it
‘may no longer be good law’ (2012: 137)). Both
Bridgeman v. Corel and the facts in the
dispute of the National Portrait Gallery with Wikimedia Commons should be
clearly distinguished from Graves’ Case.

The historical distance to Graves’ Case highlights one
particular aspect of those voices resting their argument on that case - an
argument, by the way, that attempts to take advantage of the historical campaign
for the copyright protection of photographs as such – which is that this
issue was the subject of considerable and highly emotional debate at the end of
the nineteenth century. The prevailing view on photography was far more
mechanistic than it is today. Eastman Kodak’s slogan, ‘You press the
button, we do the rest’, was a popular advertisement, which summed up the
common belief that a photograph was the result of an ingenious piece of
machinery, the pre-determined product of an optical-chemical and mechanical
process. Artist-photographers had to fight to obtain copyright protection for
their works (see for example Bigeon 1894).
However, emphasising, on the one hand, that photographs deserve the same
protection as other works of art while, on the other, asserting that photography
has suffered from its supposedly industrial nature, and arguing that every
photograph is ‘more or less a copy of something else’ (Garnett 2000: 229) belies a sophisticated
understanding of what photography is. Speaking of a portrait painter
‘copying the physical attributes and appearance’ of a sitter (Ong 2010: 170) hardly does justice to the
process (cf. the refined approach by Malkan
2005: 427–8). In photography, the relationship between
originals and copies is complicated by the dual origin of the photograph itself,
which comprises both creative and mechanical elements (Malkan 2005: 439). The historical argument that photography
is a potentially artistic medium should not be confused with a claim that all
photographs are original. While it is true, as Allan (2007: 977) observes, that just because a process is
laborious and requires technical skill does not make it unoriginal and
uncreative, the opposite conclusion would be equally as flawed: labour and skill
alone do not constitute an original process. A photograph can
be as artistic as a painting, but it is not always, just as it
can be of an industrial nature, but is not always. To state
that every photograph is also a copy, would mean reiterating the mechanistic
standpoint that was criticised in the first place. Taken together, the
statements are self-contradictory; interpreted separately, they project elements
of an individual photograph on the concept of photography as a medium. But it is
not only the concept of originality that has made progress since 1869, it is
also our understanding of what photography is. This convoluted approach to
photography by some legal authors is irritating, because Garnett (2000: 234) himself observes that the medium
itself is not the entire message: ‘it depends on how it is
used.’

2.4 Originality v. skill and reproductive translations

In an obiter dictum of Interlego, Lord Oliver
had questioned whether Walter v. Lane’s
skill and labour standard should be applied to copies, averring that
‘[s]kill, labour or judgment merely in the process of copying could not
confer originality.’ ([1988] RPC, 343, at 371; cf. Judge and Gervais 2009: 395). In Walter v.
Lane ([1900] AC 539), the defendant had re-published the
plaintiff’s – The Times’ – transcripts
of five parliamentary speeches. The House of Lords emphasised the irrelevance of
originality in the decision on authorship, but, as Deazley (2001a: 180) remarks, the relevant Copyright
Act of 1842 did not incorporate the requirement of originality, which renders
the precedent unconvincing. Nevertheless, in their most recent edition, the
authors of Copinger & Skone James on Copyright (2010: 3–144) claim that Lord
Oliver’s oft-quoted obiter dictum is inconsistent with
Walter v. Lane and therefore ‘must
now be considered, as a generality, to be wrong’. The latter decision
being more than one hundred years old, the use of the word ‘now’ in
Copinger is surprising, all the more so as Interlego had made
reference to Walter v. Lane.

Furthermore, the suggested analogy between the photographer reproducing
two-dimensional works of art and the ‘reporter who faithfully reproduces
the spoken word of a speaker, and whose work was protected in
Walter v. Lane’ (Garnett 2000: 236; Garnett is one of the
authors of the recent edition of Copinger & Skone James) does not hold: the
reporter translates the spoken word into a text, whereas the photographer
reproduces an image. The reporter creates a work in a new medium directed at a
different sense: speech is for hearing, the report is for seeing / reading. In
contrast, the photographer of a painting only reiterates its visual message. The
case of the photographer of a sculpture further clarifies the difference: he
translates a three-dimensional object, which can also be appreciated by the
sense of touch, into an image that can be appreciated only visually. Conversely,
in Martin v. Polyplas Manufacturers Ltd.
([1969] NZLR 1046) the plaintiff had produced three-dimensional plastic
engravings from two-dimensional drawings, which incidentally is why that case
cannot be compared to Bridgeman v. Corel as
Stokes (2012: 138) proposes to do.
Following Alexander Baumgarten, who defined aesthetics as the science of the
experiences of the senses (cf. Baumgarten 1750:
6), these sensory translations and potentials become relevant to the
distinction between original and other works.

The case of photographs seems even more unclear given that mezzotint
reproductions of paintings have been held to be original derivative works under
US law (Alfred Bell & Co. v. Catalda Fine
Arts, 191 F.2d 99, at 104). However, non-photographic means of
reproduction, such as engraving and mezzotint, do include an element of
translation, namely from colour to black and white, and from shades of colour to
the graphic language of lines, stipples, or cross-hatching (cf. Butler 1998: 84). Engravings are created
using lines and stipples in a variety of densities, while mezzotint is a
technique that uses shades of grey from a pre-treated copper-plate. Both involve
personal intellectual choices in terms of a design following the visual grammar
of the medium employed. Modern photography does not involve the same kind of
choices; its aim is a faithful reproduction based on the test of visual
consistency, a comparison of original and reproduction. Photographs serve as
surrogate images (Butler 1998: 116).
Indeed, as Ginsburg (2003: 1083)
observes, the easier the technology makes it to produce quality reproductions,
‘the less the copyist’s skill should be equated with authorship even
in a Commonwealth jurisdiction.’ This does not mean that the originality
standard has shifted, as Cameron (2006:
37) suggests, rather it signifies a distinction based on different
reproductive techniques, which is consistent with the originality test as
defined by Lord Atkinson in MacMillan & Co. Ltd v.
Cooper ([1924] 130 L.T.R. 675, at 678–79):
‘labour, skill and capital expended should be sufficient to impart to the
product some quality or character, which the raw material did not possess, and
which differentiates the product from the raw material.’ Photography is
still the benchmark technology when it comes to visual reproduction, because it
does not add quality or character to the work of art
reproduced, and it does not call for an original translation into another
artistic medium such as engraving or mezzotint, where the categories of
Walter v. Lane would be appropriate.
Instead of translating the visual impact of a work of art, a photographic
reproduction attempts to conserve that impression with the help of its technical
qualities and mechanisms.

2.5 Why the subject matters: characteristics of photographic copies of works
of art

While the authors mentioned are correct in their understanding of photography as
a medium that is a mixture of creative and mechanical processes, and in one
sense always a copy of its object of representation, they fail to acknowledge
that the subject of a photograph does matter when deciding on its originality.
Indeed, it might even matter in other media, as the case of Appropriation Art
suggests. Appropriation Art is a direction in postmodern art, which, among other
intentions, aims to undermine copyright concepts and the corresponding
aesthetics of originality by seemingly faithfully copying other works of art. In
the second Bridgeman v. Corel decision, Judge
Kaplan referred to the non-copyrightability of works of Appropriation Art
– since they are not original, they cannot be protected. The reality of
copies in the visual arts is more complex than the brief paragraph in Copinger
& Skone James indicates. Their statement that ‘the photograph ought to
be entitled to copyright protection, irrespective of its subject matter’,
is a bold one, because it generalises and oversimplifies. The short taxonomy
offered by Judge and Gervais (2009: 377)
is helpful in this context:

‘Literary and artistic works are the result of one or more of three types
of choices: technical choices, those that are essentially dictated by the
technique used (e.g., in painting or photography, or certain forms of poetry);
functional choices, those dictated by the function that a utilitarian work will
serve (e.g., a chair must not collapse when someone is sitting on it); and
finally creative choices, those that truly stem from the author and where, if
someone else has produced the work, there would most likely have been a
different result.’

Reproductive photographs are not the result of the third type of choices but only
of the first and second: they are the outcome of technical preconditions such as
light, distance, etc., and the functional purpose of rendering the original work
of art as faithfully as possible (see Butler
1998: 119–22, quoting the handbook ‘How to Photograph
Works of Art’ by Sheldan Collins). Antoine Latreille (2002: 300) suggests a similar model; he
distinguishes (1) an active composition of the photographer, who creatively
decides on the subject and its constellation, (2) a passive composition, where
the photographer decides on technical issues such as angle, focus, light, etc.,
corresponding to the functional choices mentioned above, and (3) a fixed
composition, limiting the photographer’s choices to technical issues. In
conclusion, in certain situations, such as a faithful reproduction, a photograph
is not ‘un œuvre d’esprit’ (Latreille 2002: 299). In their 1969 hand-book The
Graphic Reproduction and Photography of Works of Art, John Lewis
and Edwin Smith clearly state for the reproductive photography of
two-dimensional works of art: ‘Most forms of photography involve choice,
at least of a view-point, of lighting and of exposure. Here there is
none.’ (Lewis and Smith 1969:
49).

It is here that the ‘visual significance’ put forward by Lord Oliver
in Interlego ([1988] RPC, 343, at 374) becomes legally
significant as a response to the view harking back to Graves’
Case, ‘that every photograph is more or less a copy of
something else’ (Garnett 2000: 229;
cf. Graves v. Walker (1869) LR 4 QB 715, at
723: ‘All photographs are copies of some object […].’),
because this view does not take into account that some photographs are nothing
more than a copy of something else, or, in the words of Latreille (2002: 304), the photographer of a
reproduction does not bring forward his own vision but the artist’s whose
work he is reproducing (cf. Butler 1998,
102–03; Malkan 2005:
458; contra Allan 2007:
972; Bently and Sherman 2009:
110; Lehment 2008:
36–7). Even an opponent of the Bridgeman decisions admits that
‘the reproductions really do look like the underlying works’. (Allan 2007: 977; cf. Ong 2010: 180: ‘the idea expressed is the
copyrightable expression found in the antecedent work’ – in other
words, not a personal expression).

The European Court of Justice has emphasised very clearly in
Painer v. Standard Verlags-GmbH and others
that ‘copyright is liable to apply only in relation to a subject-matter,
such as a photograph, which is original in the sense that it is its
author’s own intellectual creation. As stated in recital 17 in the
preamble to Directive 93/98, an intellectual creation is an author’s own
if it reflects the author’s personality. That is the case if the author
was able to express his creative abilities in the production of the work by
making free and creative choices […].’ (Case C-145/10, [1 December
2011] ECR I-12594, at paras. 87–89). These criteria are also reflected in
Temple Island v. New English Teas and Nicholas John
Houghton ([2012] EWPCC 1, at s.20), where Judge Colin Birss QC
stated: ‘A photograph […] can have the character of an artistic work
in terms of copyright law if the task of taking the photograph leaves ample room
for an individual arrangement. What is decisive are the arrangements (motif,
visual angle, illumination, etc.) selected by the photographer himself or
herself.’

Faithful reproductions, which can be measured against a technical standard, do
not allow for these creative choices and individual arrangements. Comparing
different reproductions with each other and with the original, it will be
possible to agree on the best, which will be the most faithful. For a variety of
original photographs, this category is likely to be fruitless. In the
terminology of semiotics, copyright does not protect pure icons, only those
signs that are also symbols.

The question has been posed why an ‘opportunistic photograph’ of
somebody happening to be at the right place at the right time, such as a
tourist’s photograph of Buckingham palace, is original enough to be
copyright protected, but the reproduction of a two-dimensional artwork, which
requires considerably more skill and labour, should not (Garnett 2000: 235). The answer is that the tourist’s
photograph is unique and personal; the reproduction is not. It is a copy. It
does not originate with the photographer, it originates with the author of the
original – a fact that Allan (2007:
972) seems to disregard. The minimum personal intellectual
achievement is not given – the achievement is intellectual, but not
personal (Nordemann 1987: 18;
contra Garbers-v. Boehm
2011: 155). The comparison of the snapshot and the reproduction tries
to reintroduce an aspect of artistic quality to the analysis of originality,
which is alien to copyright (on this aspect cf. Rahmatian 2005: 373). The ‘opportunistic photograph’
might not be original in its technique or aesthetics, but it will always be
original in that it conveys the personality of its maker (cf. Temple
Island v. New English Teas and Nicholas John
Houghton [2012] EWPCC 1, at s.51). If a reproduction conveys the
personality of its maker, it is not a good reproduction (Malkan 2005: 434). While a reproductive ‘photograph
is different in quality and character from the painting [and] has different
attributes and different uses’ (Garnett
2000: 236; cf. Allan 2007:
978), these differences stem exclusively from the relation between an
original and its copy. For example, colour differences are not a personal
contribution from the photographer but an inadequacy (Butler 1998: 111). These changes do not transform the copy
into an original, and to repeat the contrary by introducing concepts such as the
authorship of a copy (Ong 2010: 179) does
nothing to make the argument any more convincing (see Meshwerks,
Inc. v. Toyota Motor Sales USA., Inc., 528 F.3d
1258 (10th Cir. 2008), at 1267).

In other words, while acknowledging that the artistic level required for
copyright protection is low, and that copyright has been conferred on simple
works (Garnett 2000: 230), reproductive
photographs are not of a low artistic quality: they are not artistic at all. Nor
are they meant to be; as Malkan (2005:
425) puts it: ‘Copies can be authorized, but only works can be
authored.’ The very faithfulness to the original of the Bridgeman
Library’s copies was their greatest asset – ‘artistic’
or ‘original’ reproductions would not be marketable, because they
would not serve their purpose. The commercial value of photographic
reproductions is based on their unoriginality. In consequence, copyright is not
an appropriate means of protecting their market.

2.6 Two- and three-dimensional works

However, an important distinction must be made between three-dimensional and
two-dimensional objects (cf. Bielstein 2006:
40). True, a philosopher might argue that no such thing as a
two-dimensional object exists; it would be more appropriate to speak of objects,
of which only one side needs to be reproduced to represent it in its entirety.
Plainly, this is the difference between sculpture (three-dimensional) and works
such as paintings, drawings, and prints (commonly referred to as
two-dimensional). Reproductions of three-dimensional objects necessitate a
creative choice that goes beyond purely technical decisions, for example from
which angle the object is photographed, or the photograph(er)’s focus (cf.
Antiquesportfolio.com plc v. Rodney Fitch
& Co, [2001] E.C.D.R., 51, at 59; Cameron 2006: 42–3; Garbers-v. Boehm 2011: 140–50; Stang 2009: 177; but cf. also the doubts raised by Wojcik 2008: 266–7). Each
reproductive photograph of a sculpture is likely to be different. Each
reproductive photograph of a painting or print can be different, but for purely
technical reasons – reproductive photographs of two-dimensional works of
art are meant to be exact and identical, or what is commonly referred to as a
‘slavish copy’. While there are also works that are more difficult
to classify as two- or three-dimensional, such as paintings including
three-dimensional objects, like Kurt Schwitters’ collages (cf. Allan 2007: 978), Stokes’ comment that
it ‘is hard to see how a court could reasonably make a distinction between
photographs of two- and three-dimensional items’ (2012: 139) is solely relying on the argument of the common
labour and skill needed for both sorts of photograph and thereby missing the
point of originality.

2.7 Conclusion

There is no copyright in photographic reproductions of two-dimensional works of
art in the public domain. Consequently, under US law, the Bridgeman cases
‘still stand for, at the very least, the important and distinct principle
that exact replications of public domain works warrant no copyright
protection’ (Dobson 2009: 347).
Taking into account recent European and UK case decisions, it is reasonable to
state that the same principles are also valid for UK law.

It is possible that an analysis by the National Portrait Gallery’s lawyers
came to the similar conclusions, which might have been one of the reasons behind
the decision not to sue Derrick Coetzee. While the fact that the high-resolution
images provided by the National Portrait Gallery were accessible only using the
Zoomify software and had to be stitched together might constitute a
circumvention of technical protection measures (cf. sect. 296 CDPA), works in
the public domain do not actually fall within the scope of this regulation
(Garbers-v. Boehm 2011: 217–18;
see also Art. 6, ect. 3 of the Directive 2001/29/EC, linking technological
measures to protected works). Furthermore, the Zoomify technology is not a very
effective means to control access to the higher-resolution image (cf. Stokes 2012: 160: ‘clearly a matter
of fact’).

3. The business of copyright, copyfraud, and museum ethics

In view of these findings, what is the significance of museums’ and
agencies’ disregard for the law (see above, 2.2)?

3.1 Re-appropriation of the public domain as a fundraising strategy

Museums re-appropriate works in the public domain through their practice of
claiming copyright protection for their reproductions, thereby arbitrarily
extending the copyright term. Susan Bielstein (2006: 38) and others speak of the ‘privatisation of the public
domain’, Kathleen Butler (1998: 74)
of a circumvention of the public domain, and Ronan Deazley (2001a: 183) of a ‘de
facto perpetual monopoly over the commercial reproduction of
publicly owned works of art’. The opposite view, namely that copyright
protection for reproductions does not change the public-domain status of the
original work is admittedly based on the assumption ‘that the antecedent
work was accessible to the public’ (Ong
2010: 185), a condition that is, however, rarely met in real life,
thereby devaluing this consideration (cf. Cameron 2006: 57–8; Deazley
2001b: 601; Reese 2009: 1047;
Stang 2009: 208).

As Tuchmann (2001: 313) observes, the core
issue for museums has always been access and aesthetic control, not copyright,
except as an instrumentality of that access and control. Similarly, in her
analysis of French museums and their position vis-à-vis
copyright law, Sonia Tapissier-Gicquel concludes that it would be more
transparent to charge service fees for reproductions instead of copyright fees.
From the perspective of museums, however, this would imply a loss of control of
the image as is currently provided by copyright regulations. Furthermore, she
observes, the declaration as copyright fees allows the RMN to charge higher fees
(Tapissier-Gicquel 2004:
130–131). This hints at the real problem. The reasons behind
the museums’ claim on copyright are factual and prosaic. As the
Guide to Copyright for Museums and Galleries bluntly
states: ‘In order for museums to raise income from merchandising,
licensing or the commercial “development” of any part of their
collections, the museum must quite simply build, somehow, exclusive rights to
its collections.’ (Wienand, Booy and Fry,
2000: 52). While copyright is not something that can be
‘built’, and the factual construction of copyright in works of art
in the public domain remains a pretension, one ‘can understand the
museums’ motivation to take this position.’ (Reese 2009: 1040; see also Latreille 2002: 302). Licence fees may become an increasingly
important source of income in times of economic crisis, when museums and
galleries are forced to raise money.

However, while it has been stated that licensing fees constitute ‘an
essential source of revenue’ (Cameron
2006: 32), the facts remain unclear in most cases, and some revenue
figures seem to indicate a rather limited market and significance (cf. Deazley 2010: 109–10; Hamma 2005). In our digital age, servicing
image orders has become less labour-intensive and time-consuming, thus reducing
service costs (cf. Allen 2009: 29; Ballon and Westermann 2006: 31). It has
become doubtful whether a truly public domain encompassing the reproductions of
its two-dimensional works of art would, as Deazley (2001a: 184) asserts, have serious financial implications
for the cultural institutions concerned (but cf. Kelly 2013: 29). The current WIPO Guide on Managing Intellectual
Property for Museums analyses recent developments in museums’ business
models and concludes that ‘the making available of museum images is merely
a means to a commercial end, and not the end itself’, pointing out that
‘providing unfettered access to museum images is actually good
business’ (Pantalony 2007:
98–99). One of Kelly’s conclusions is very clear in this
regard as well: ‘Real and perceived gains far outweigh the real and
perceived losses for every museum in the study that has made a transition to an
open access approach’ (Kelly 2013:
24).

The present situation is an unsatisfactory double-bind, as described by Cameron
(2006: 61): because the revenue from
licensing images ‘will enable the museum to continue protecting the public
domain works already in its collection […], museums are both serving the
public by preserving this art and harming the public by falsely claiming
copyright in public domain images.’ The opposition is formulated
differently in the ICOM Code of Ethics for Museums, 2006, in section 1.9 – ‘The governing body
should ensure that there are sufficient funds to carry out and develop the
activities of the museum.’ – and section 3.2: ‘Museums have a
particular responsibility for making collections and all relevant information
available as freely as possible, […].’ To return once more to the
National Portrait Gallery, their website states: ‘The Gallery’s
image licensing department raises money by licensing reproductions, thus
supporting both the free entry policy and the Gallery’s main functions
caring for its Collection and engaging people with its works.’

3.2 Copyright overreaching, museum ethics and the public mission of
museums

Nonetheless, to quote a recent essay on copyright, ‘Law is not the solution
to business problems’ (Patry 2011:
141). Furthermore, the codes of ethics for museums also include an
acknowledgement of the legal position, for example stating that ‘All those
who work for or govern museums should ensure that they […] make all policy
and practice at the museum comply with the law.’ (section 2.8). The ICOM
Code of Ethics includes similar provisions, stating (in section 7.1):
‘Museums should conform to all national and local laws and respect the
legislation of other states as they affect their operation.’ At present,
however, the suggestion is that many museums’ practice in rights and
reproductions does not comply with UK copyright law. Instead, it is a widespread
practice to contract around copyright law with terms and conditions regulating
access to works in the public domain and their reproductions (Mazzone 2011: 95–100; see also Bohannan 2008 on contract clauses and
copyright policy), notwithstanding that such contracts cannot legitimately be
used to bypass copyright law but must respect it (Wojcik 2008: 269, 279–84). As Crews (2012: 821) has clearly stated: ‘any
restrictions beyond the reach of copyright are in defiance of the law and the
social and intellectual objectives that copyright aims to serve.’

Within the European Union, this means that contracts bypassing essential
principles of copyright law can be problematic in view of the Council Directive
93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (cf. s.6 (1) in
the UK’s Unfair Terms in Consumer Contracts Regulations 1999). The
museums’ ‘abusive practices’ (Latreille 2002: 302) with regard to reproductions of two-dimensional
works of art in the public domain are in breach of copyright law, irrespective
of these institutions’ dire economic situation, and irrespective of
whether this practise is called ‘copyfraud’ (Mazzone 2006: 1041–2; Mazzone 2011, passim) or ‘copyright overreaching’ (Crews 2012: 795). ‘Wrong life cannot
be lived rightly’ (Adorno: 1974,
39).

On the other hand, is it ethical to download digital reproductions and to make
them available in an open repository such as Wikimedia Commons? From the
perspective of copyright law, Derrick Coetzee copied reproductions of
two-dimensional works of art in the public domain, and was entitled to do so.
However, he did not act in accordance with the terms and conditions as set out
on the National Portrait Gallery’s website. Then again, these terms were
not actually in line with copyright law. Metaphorically, Coetzee did not set
somebody else’s chicken free; he freed a chicken that did not belong to
any specific farmer and should not even be living on a farm in any case. Thus,
the time has come to move past the logic of copyright pretensions in regard to
reproductions of works of art in the public domain.

To return to Adorno’s ‘right life’, museums need to set aside
their rhetoric of copyright and wake up to their mission. ‘Citizens should
be encouraged to reproduce and make use of public domain materials, not treated
as though they are breaking the law.’ (Mazzone 2006: 1060). This is true whether the copyfraudster is a
private company, such as the Bridgeman Art Library, or a public museum. Neither
holds any copyright in reproductions of two-dimensional works of art in the
public domain. However, public institutions such as museums are on a public
mission, as Ronan Deazley (2001a: 183)
reminds us. Their ‘pictures belong to the public, and are (for the most
part) […] in the public domain.’ The ICOM Code of Ethics for Museums
states in section 2: ‘Museums that maintain collections hold them in trust
for the benefit of society and its development.’ Meanwhile, the Code of
Ethics for Museums published by the UK Museums Association states:
‘Society can expect museums to hold collections in trust on behalf of
society, […] encourage people to explore collections for inspiration,
learning and enjoyment, […] research, share and interpret information
related to collections.’ Public collections’ trusteeship includes
the dissemination of reproductions for non-commercial purposes. Marie Cornu and
Nathalie Mallet-Poujol (2006: 314) argue
that the public display of an object includes the willingness to communicate
that object’s appearance and a fortiori its image, with
the reservations of a possible – real, not merely fictitious –
copyright in the object. Indeed, in Allan’s words (2007: 983) museums are ‘the proper institutions to
entrust with the public dissemination of high-quality reproductions of a broad
range of works of art.’ Recently this view has gained prominence with an
interview given to the New York Times by the Director of Collections at the
Rijksmuseum, Taco Dibbits, who is quoted saying ‘If they want to have a
Vermeer on their toilet paper, I’d rather have a very high-quality image
of Vermeer on toilet paper than a very bad reproduction’ (Siegal 2013). ‘Keeping the World Safe
from Naked-Chicks-in-Art Refrigerator Magnets’ (Butler 1998) is no longer a realistic option. The recent
developments in open access policy in the UK, Europe and the USA will put
further pressure on museums and public collections to make their images
accessible, as the underlying rationale is essentially identical: in the last
five or so years major research funders have implemented policies to promote
open access to the published findings of the research they fund (see Finch 2012: 34). Publicly funded research
should be made accessible to the public. In a similar way, publicly funded art
collections should be made accessible. For works in the public domain this means
permitting unrestricted access to their reproductions, unhampered by copyright
overreaching.

4. Reproductions reconsidered

So how could the mission of cultural partnership be developed in post-copyright
categories?

4.1 Accessibility of the works for private photography

The question of a right to access to the public collections is still in a
‘chaotic’ state (Cornu and
Mallet-Poujol 2006: 308). Many museums allow photography in their
rooms (but the use of flashes is in most cases prohibited due to conservatorial
concerns). In France, an administrative decree dating from 1979 (Journal
officiel, 6 April 1979: 3047) established that photography for private use was
permitted as far as permanent collections of public museums were concerned, but
not for works on show in temporary exhibitions (see Cornu and Mallet-Poujol 2006: 312). In contrast, Wienand,
Booy and Fry (2000: 55), advise museums
in the UK not to allow photography in their galleries. The National Portrait
Gallery runs a strict policy: ‘We also exert strict controls on all
photography in the Gallery, which is allowed only on the understanding that
copyright rests with us and that any further reproduction deriving from
resulting photographic materials is subject to our written permission.’
(NPG Website: Copyright). Photography
is not permitted at the Tate either, whereas it is at the Victoria & Albert
Museum and the British Museum. In view of public museums’ educational
mission, Bullinger (2006: 395–6)
and Garbers-v. Boehm (2011: 292) raise
doubts about a general ban on photography in museums.

A short, non-representative survey on websites such as Flickr and Picasa provides
a mixed impression. Very few images of works of art could serve publishing
purposes. Most private photographs are too individual and far from representing
a professional reproduction. These images combine the subject matter of a
reproduction with the stylistic characteristics of ‘occasional
photographs’ – a warped picture plane, uneven sharpness and
lighting, unfaithful colours. These kinds of photographs are not serious
competition in the market of professional art reproductions. Not being of a
commercial concern in terms of the market, private photographs without flash and
tripods should therefore be permitted in public museums, at least in rooms that
display works in the public domain. More professional photography may interfere
with a museum’s everyday exhibition and display routines. Paintings might
have to be taken out of their frames, a suitable room would have to be found,
where the photography would not disturb other visitors. These procedures are
cost-intensive. While it should be possible for professional photographers to
create such high-quality reproductions, there is no need for a public museum to
subsidise these activities (cf. Bullinger 2006:
395).

4.2 An offer that can’t be refused

Reese (2009: 1041) has pointed out certain
common interests in reproductions of works of art in the public domain. All
parties have a preference for high-quality reproductions, sharp, in a high
resolution and with the correct colours. He proposes ‘a sui
generis system of limited protection for art reproduction
photos’ with a shorter term of protection of between five and twenty-five
years, a limitation of the protected rights to reproductions, and the duty to
deposit the image in question in a repository, where, on the expiry of the term
of protection, the public could access the image without having to deal with the
museum (Reese 2009: 1048–9). While
the latter idea would strengthen the public domain, the proposal also denotes an
endorsement of the factual prolongation of the copyright term as is current
practice, which is why other solutions are preferable. An alternative regime to
copyright in regard to reproductions of works in the public domain might prove
beneficial to the museums. Taking the approach to ‘Commercialise
Authoritative Content’ (Pantalony 2007:
80–82) seriously, the museums’ market position with
regard to reproductions can be strengthened if they offer a surplus value such
as the best quality, additional art-historical information, and the aura of the
original (cf. Tuchmann 2001: 315; see
also Pfennig 2009: 141; Stang 2009: 216). Some users such as art
historians may be willing to pay a premium for authenticity and accuracy (Reese 2009: 1042); other users such as
advertising agencies may be willing to pay for the highest possible quality
(Matz 2000: 19). Commercial users
still come to the National Portrait Gallery to obtain the best reproductions
available (cf. Morgan 2010:
39’00”). Part of a service fee for the use of a
collection’s reproductive image might be advertised as supporting the
educational aims of the museum. Awareness of social values has grown in recent
years, and a considerable proportion of the public is prepared to support
charities with donations (cf. Reese 2009:
1042). Exploitation of the collection for merchandising products such
as coffee mugs, tea towels, underwear or inflatable figures can be protected by
trademark laws (Reese 2009:
1042–43) or unfair competition laws (Matz 2000: 22) rather than copyright law.

The securement of exclusivity, as proposed by Wienand, Booy and Fry 2000: 53,
like the music industry’s battle against downloads, is bound to fail.
Apple’s iTunes and internet platforms such as Amazon, which are easy to
use, offer a transparent system of rights management, and fair pricing, thereby
providing a proof of concept for the management of museum reproductions (cf.
Tuchmann 2001: 315, mentioning the
ease of access as a reason why services such as Bridgeman’s will endure;
Morgan and Minet 2012: 55, advocating
a flagship centralised image licensing agency for museums and galleries in the
UK). The fees furthermore have to be reasonable in order to comply with the
public museums’ mission (Garbers-v. Boehm
2011: 295–6). As Maria Economou has shown in her paper for this
conference, museums can enter successful partnerships with web 2.0 communities
such as Flickr; examples include the Brooklyn Museum and the Smithsonian
Institution (see also Allen 2009: 25). The
loss of control of images is a fact in the digital age, but not necessarily a
commercial risk, as a curator of the Walter Art Museum in Baltimore admits:
‘We have lost almost all control, and this has been vital to our
success’ (quoted in Kelly 2013:
28).

Museum ethics are not one-sided. The visitors and website users are obliged to
contribute to a successful partnership. After all, the museum is working on
behalf of the public. In his talk at the Wikipedia conference in November 2010,
the National Portrait Gallery’s Tom Morgan justifiably appealed for the
public’s respect for the cultural content offered by the gallery (Morgan 2010: 42’10”). A museum
should be credited when its reproductions are used and re-published.
Interestingly, the concept of moral rights, which has only recently entered the
spheres of Anglo-American copyright legislation, seems appropriate, in that the
producer of a reproduction of a work of art in the public domain should have the
right to be credited as reproducer (cf. Crews
2012: 816–17; Smiers and van
Schijndel 2009: 64). Moreover, there are historical precedents of
photographic reproductions being famous for their quality, for example Franz
Hanfstaengl’s photolithographs or Goupil’s photogravures in the
nineteenth century.

If museums offer this kind of service, the question of a service fee arises. If
museums provide the public with high-quality reproductions, they can expect to
be paid for their services, not least as part of the desired respect (cf. Crews 2012: 806). However, commercial and
non-commercial users should be charged different rates. If a global player needs
a high-quality reproduction of the Mona Lisa to promote his product, he should
pay a fee to support the cultural field he is making use of: the museums and the
visual heritage they administer. Underpaid academics publishing books with an
average readership of a few dozen experts should not have to pay as much, since
they pursue non-commercial interests. In the USA, where the doctrine of
‘fair use’ is more prominent than its British equivalent,
‘fair dealing’, the Metropolitan Museum of Art in 2007 launched an
‘Images for Academic Publishing’ initiative to provide scholars with
high-quality images from its collection free of charge (see Allen 2009: 15–21). The Library of
Congress makes clear that it does not own the copyright on the materials in its
collections also made available on its website (cf. Mazzone 2011: 18). The National Gallery of Art in
Washington DC follows an open access policy for their collection, and the list
of American institutions offering open access to their collections is growing
and includes highlights such as the Los Angeles County Museum of Art and the
Yale Center for British Art (see Kelly
2013). The recent reopening of the Rijksmuseum in Amsterdam was
accompanied by a website relaunch comprising freely accessible digital archives
(cf. Siegal 2013).

In the UK, important institutions have changed common museum practice and have
begun to make their collections available digitally, with the option to download
a high-quality image suitable for publishing. The Victoria & Albert Museum
and the British Museum offer this service for non-commercial purposes, including
academic publishing (on the V&A’s ‘Search the Collection’
initiative cf. Deazley 2010:
109–10; Allen 2009:
21–23). If the image of an object in the British Museum’s
collections has not yet been photographed, a reasonable fee of £60 (approx.
€70) is incurred. In this way, the first-time user becomes the sponsor of
a reproduction, since it will be included in the digital collection and be
freely available. In 2012 the National Portrait Gallery changed its policy and
implemented a new licensing model (see Atkinson
2012), offering professional and academic licences for
high-resolution images suitable for publication and a creative commons licence
for private use suitable for digital presentations. This model reflects the
considerations of this article. Commercial projects incur a fee, whereas, as a
rule, the fees for illustrations for academic publications are waived. (For
recent surveys of art museum image licensing policies in the UK and the USA see
Allen 2009; Crews 2010–12; Kelly
2013; all with further references.)

These examples are encouraging. From personal experience I know that when it
comes to non-commercial publishing, many museums’ departments of rights
and reproductions are extremely helpful and provide concessionary fees wherever
possible. However, even lots of good individual examples cannot substitute a
consistent policy. A satisfactory balance between the interests of public
museums and the interests of the public in reproductions cannot be achieved
using the categories of copyright. A rethink of the approach to reproductions of
works in the public domain has only just begun.

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Petri, Grischka. 2014. The Public Domain vs. the Museum: The Limits of Copyright and Reproductions of Two-dimensional Works of Art 12, no. 1: Art. 8. DOI: http://doi.org/10.5334/jcms.1021217